Think Twice Before “Wondering Aloud:” Interviewer’s Musing Costs Employer on Appeal
An infamous World War II-era propaganda poster warned that “loose lips might sink ships.” We all know someone prone to oversharing—or simply not knowing when to let their thoughts go unsaid. A recent sex-discrimination case serves as a cautionary tale about the risks associated with loose-lipped interviewers.
After 20 years of work for the U.S. Postal Service, Elizabeth Warner applied for a promotion. She was passed over twice, both times for younger, male applicants. Warner sued, bringing claims for both age and sex discrimination. Though Warner offered some supporting evidence, the New Hampshire federal district court dismissed her claims at summary judgment, concluding that no reasonable jury could find for Warner at trial.
Last week, a federal circuit court partially reversed that ruling, reinstated Warner’s sex-discrimination claim and sent the case back for trial. That decision rested almost entirely on a single piece of evidence — a statement made during Warner’s promotion interview. During that interview, Warner’s supervisor remarked that the office Warner had applied to lead “had never had a female postmaster.” The supervisor then added that “she wondered how that would work out.”
In the appellate court’s view, that statement was enough to create a factual dispute. Even if that comment could be understood as “merely imprudent wondering aloud,” a jury could also find that the question reflected “doubt that a woman could do that job.” The court also stressed who made the statement and when: it was “delivered during the interview itself, by the acknowledged decisionmaker.”
Warner’s sex-discrimination claim may still fail at trial. But there’s no question that the supervisor’s comment has extended the case and added headaches for the Postal Service. The lesson for employers is straightforward. Supervisors trusted to conduct interviews must be trained to avoid even stray comments about protected classes like race and sex. An excuse like “I was just wondering aloud” may not be enough to save an employer’s arguments at summary judgment, even if the evidence is otherwise thin.
Utah Employers Brace Themselves for a Swell in ICE Activity
The Trump administration continues to make clear its intent to prioritize immigration enforcement. Those enforcement measures are attention-grabbing both for the nation at large and for employers who may find themselves grappling with a variety of immigration demands. Those demands may include both facility-wide enforcement activity (workplace raids) and more targeted site visits, which often follow approvals for specialized, employee-sponsored visa recipients.
Though official figures aren’t available, many immigration attorneys report a significant uptick in “Form I-9 inspections,” and recent reporting reflects that Utah is among the states seeing an increase in such inspections. Employers typically receive notice of those inspections, but that notice is almost always minimal: U.S. Immigration and Customs Enforcement (ICE) may provide a Notice of Inspection as little as three business days in advance of an I-9 audit.
I-9 inspections may be targeted or random, but it’s widely recognized that certain industries—including hospitality, construction and food processing—are at greater risk of fielding inspections. Because fines for noncompliance (including sloppy paperwork) can be significant, employers in those industries would do well to review relevant ICE guidance in advance and may want to engage counsel to assist in compliance efforts.
Who Counts as a “Tipped Employee,” Anyway? Feds Offer a Sneak Peak
Employers may have heard that the “One Big Beautiful Bill” (OBBB) contains a perk for tipped employees: between 2025 and 2028, certain employees may be eligible to deduct up to $25,000 in “qualified tips” when reporting their income.
One open question, of course, is who counts as a tipped employee? Last week, the U.S. Treasury and the Internal Revenue Service released a preliminary list with some surprises. The long list includes not only expected occupations like bartender and waitstaff, but also includes unexpected occupations like plumbers, key-makers, party planners, tutors, tattoo artists and DJs.
Employers will be expected to participate in the “qualified tips” exercise through reporting to federal agencies and through tip-identifying statements to employees. Given the longer-than-expected preliminary list, employers who are unsure of whether their employees may be covered under the OBBB would be wise to ensure they aren’t leaving an unsuspecting DJ with an undeservedly high tax bill.
